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Constructive Dismissal and Key Tests

The case of a Chef v A Nursing Home ADJ-00034341 is a good summary of the tests to be applied in respect of constructive dismissal.

In this case a Chef in a nursing hime alleged that the working conditions in the home had become intolerable, he was not paid the correct rate for Bank Holidays, not given proper tools and harassed by repeated contacts during his paternity leave. As a result he felt he had no alternative but to resign.

Although the employee lost this case, it is a useful summary of the tests applied by the Workplace Relations Commission when a claim of constructive dismissal arises:

Constructive Dismissal and the Law

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: (bold added)

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

The Adjudicator also looked at the Irish Supreme Court case of Berber -v- Dunnes Stores [2009] E.L.R. 61 whereby it was held:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Employer / Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal. (bold added)

Tests for Constructive Dismissal

(1) Test One / Breach of Employment Contract by either side so bad as to justify a resignation

The breach of employment contract in cases of this nature has to be of a very serious nature  – an example would be the stopping of a Workers wages or asking a worker to perform duties completely outside of his area of work – asking the Accountant to sweep the yard would be an example.

(2) Test Two – Unreasonable Behaviours by either side

(3) Test Three – Full use of Procedures/Raising of Grievances prior to resigning.

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